Prison Policy Initiative updates May 18, 2017by Wendy Sawyer and Emily WidraOver 7,000 women in the United States received a new HIV diagnosis in 2015, and over 60% of those women were Black, despite the fact that Black people represent just 12% of the overall U.S. population.While policymakers seem oblivious to this pressing health problem, Prof. Laurie Shrage's 2015 New York Times op-ed drew our attention to research that unravels the complicated nature of HIV risk factors among Black women. In general, Black men and women report less risky drug use and less risky sexual behaviors than whites; so what accounts for the disproportionately high number of HIV infections among Black women?From researchers, an unexpected explanationThe current interdisciplinary research points to an unexpected explanation: the mass incarceration of Black men.Two University of California professors, Rucker Johnson & Steven Raphael investigated the complicated relationship between infection rates and incarceration. Their findings reveal that "the lion's share of the racial differentials in AIDS infections rates for both men and women are attributable to racial differences in incarceration trends."The "trend" in question, of course, is the hyper-incarceration of Black men over the last few decades. Between 1974 and 2001, the likelihood of incarceration for Black men increased from 13.4% to 32.2%. The racial disparity is now extreme: in 2015, Black men were almost six times more likely to be incarcerated than white men.Johnson and Raphael (2009) conclude that if it weren't for the racial disparity in male incarceration, Black women would have lower rates of HIV infection than white women.To explain the connection between the disproportionate incarceration of Black men and the HIV rates of non-incarcerated Black women, Johnson and Raphael point to:1. high rates of HIV in prisons2. risky sexual activity among men in prisons3. sexual networks with a large number of lifetime partners4. destabilized relationships (defined by periodic absences of the incarcerated partner), and5. a disproportionate ratio of non-incarcerated Black men to women.To begin with, they found that the rates of risky sexual activity, and therefore the risk of HIV infection, among incarcerated men is significantly higher than in non-incarcerated populations. In particular, the sexual networks in prisons - where "a small number of individuals have repeated sexual encounters with a large number of partners" – increases the efficiency of HIV transmission. And considering that condoms are widely considered contraband in correctional facilities, the risk for STIs is heightened regardless of the number of sexual partners.Women who have a sexual partner with a history of incarceration are at an elevated risk of HIV infection. By forcing partners to spend long stretches of time apart, incarceration often causes breakups or on-again, off-again relationships, increasing the number of lifetime partners – a major risk factor for HIV – for both the incarcerated and non-incarcerated partners.With 1 in 15 Black adult men behind bars , incarceration also disproportionately reduces the ratio of Black men to Black women. Because the overwhelming majority of sexual relationships and marriages occur between individuals of the same age group, race, ethnicity, and geographic location, this means Black women have less ability to be selective in choosing a partner and/or in negotiating safer sexual behaviors. In particular, heterosexual Black women are more likely to have sexual partners in "high risk groups," that is, men with a history of incarceration.Prevention: Improving re-entry servicesIncarceration does not just impact the lives of those behind bars; it reaches far into communities, jeopardizing the health status of the partners and families these men return to. This is largely because of the particular vulnerability of formerly incarcerated people when they are first released. At the same time these men are returning to their relationships and families, their risk of transmitting HIV is elevated and their access to treatment is limited.Dr. Chris Beyrer, former president of the International AIDS Society, explains that "people are being released [from prison] without access to services and they experience treatment interruption," which in turn causes their viral load to spike. After release, Black men are not connected to structured care in the community to assure treatment adherence (there are some facilities with HIV transitional case management, but not much data on how effective and replicable these programs are.)In a recent study of HIV care among criminal justice involved individuals in Washington, D.C., researchers found that despite reliable access to HIV treatment providers prior to, during, and after incarceration, HIV treatment adherence drops significantly after being released.The stigma of HIV infection may also be part of the problem. As Phill Wilson, President of the Black AIDS Institute, explains, "they're stigmatized because they're Black, stigmatized because they're ex-prisoners and they're stigmatized because they're HIV positive... What sane person is actually going to disclose that they're HIV positive?"The higher risk of HIV infection among women is one of many collateral consequences of mass incarceration facing communities of color. To better protect Black women from HIV infection, we need to eliminate the gap in HIV/AIDS treatment for Black men released from prisons and jails. Correctional agencies should coordinate with community health providers to ensure continuity of care and support treatment adherence. Reuniting with partners and families should improve the well-being of communities, not add to their problems.

She had to explain why she did not enforce the ban issued by the President. Senator Cornyn asked (full transcript available here) about Ms. Yates whether that decision was inconsistent with her role to reasonably defend the actions of the administration. She answered,

It is correct that often times, but not always, the civil division of the Department of Justice will defend an action of the president or an action of congress if there is a reasonable argument to be made. But in this instance, all arguments have to be based on truth because we're the Department of Justice. We're not just a law firm, we're the Department of Justice.

Answering questions from Senator Kennedy, Yates said that any defense of the president's action would have to include the argument that the executive order had nothing to do with religion, and based on candidate Trump's past statements, that would be a difficult argument to ground in truth.

Her response on that theme reflected careful attention to the exact nature of her role, which isn't to simply defend the administration no matter what, but to that the government must always ground its arguments in truth. Truth is the truth not subject to alternative versions. To Yates, the DOJ is "not just a law firm," and a prosecutor is "not just an advocate." "While lawyers representing private parties may - indeed, must - do everything ethically permissible to advance their clients' interests, lawyers representing the government in criminal cases serve truth and justice first. The prosecutor's job isn't just to win, but to win fairly, staying well within the rules." United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993)

To get through law school, I became a devoted listener of Westwood One Radio Network and Dr. Demento. His national radio show specialized in novelty songs, comedy, and strange or unusual recordings dating from the early days of phonograph records to the current day. It was on Dr. Demento's show that I first heard Deteriorata (deteriorata is a form of "desiderata” and the verb to deteriorate) from National Lampoon. Deteriorata is a famous parody of Les Crane’s 1971 spoken word recording of Desiderata (for "Things to be Desired."), the early 20th century poem by Max Ehrmann. Deteriorata was written by Christopher Guest of "Spinal Tap" fame and sung by Melissa Manchester and contains these words:

Speak glowingly of those greater than yourself, And heed well their advice, even though they be turkeys.Know what to kiss, and when.Consider that two wrongs never make a right, but that three do

I have always wondered if the wisdom embodied in the phrase "two wrongs make right" is true in the legal system. If you think about it, the wisdom of the saying goes all the way back to Hammurabi's code which states "An eye for an eye" as in if someone pokes out your eye, you deserve to poke out their eye. In other words the wrong of taking one eye justifies another wrongful taking of another eye to make things right. Maybe Hammurabi's code was being employed to justify the past riots in Ferguson: because a police officer wrongfully shot Michael Brown, an unarmed black teenager, people were entitled to riot. Instead of employing "two wrongs to make right," it might have been wiser to turn the other cheek and think. Thankfully someone did when the Justice Department called on Ferguson to overhaul its criminal justice system, declaring that the city had engaged in constitutional violations. That's the problem, of course, with an eye for an eye: it makes the whole world go blind. So if we respond to violence with violence, all there would be is violence and everyone loses in the end.

It seems the doctrine of "two wrongs to make it right" is being urged upon the US Supreme Court in Weaver v. Massachusetts. Rory Little explains the facts of the case: "Kentel Weaver’s jury was being selected, the courtroom was already overcrowded with potential jurors, so Weaver’s mother and other supporters were told the courtroom was “closed” when they arrived. When they later told Weaver’s lawyer about this, he raised no objection; he conceded post-trial that he did not understand it was a violation. After the jury was chosen the next day, the courtroom was open to all. But the damage – the error of denying a “public” criminal proceeding – was done."

The Massachusetts Supreme Judicial Court agreed that a public-trial error had occurred, and that public-trial violations have been described as “structural” so that prejudice is presumed and a new trial is generally ordered. But Weaver was not alleging a direct public-trial violation (apparently because the failure to object might constitute “forfeiture” under Massachusetts law). Instead, Weaver was alleging a different Sixth Amendment violation: ineffective assistance of counsel. Because the Supreme Court has been very clear that prejudice must be demonstrated before a conviction will be reversed for ineffective assistance – and Weaver had not alleged prejudice at all. The Massachusetts Supreme Judicial Court denied relief because he could not prove that this error affected the outcome of his trial. The issue before the US Supreme Court is do two wrongs, two the guarantee to the effective assistance of counsel and the guarantee to a fair trial amount to the right of a fair trial? Put another way, does an attorney’s failure to object to the closing of the courtroom for jury selection deprive a defendant of his right to the effective assistance of counsel without any showing of prejudice? See Commonwealth v. Weaver, 54 N.E.3d 495, 519 (Mass. 2016).

With all due respect to Hammurabi and those who argue to me that two wrongs can make a right, you are wrong. Two wrongs cannot make something right. As argued by the ACLU prejudice should be presumed in these circumstances because specific prejudice, i.e., an effect on the outcome, is impossible to prove. Requiring a case-specific prejudice would unfairly pose an insurmountable obstacle to relief, and that such a rule would disproportionately hurt poor people who are more likely to be represented by constitutionally deficient lawyers.

In the 15th century a Japanese shogun named Ashikaga Yoshimasa broke a favorite tea bowl and sent it back to China to be fixed. But the repair job, which was done with metal staples - being the standard for repair at that time - detracted from the beauty of the bowl. Disappointed, the shogun enlisted a Japanese craftsmen to come up with a more aesthetically pleasing solution, and kintsugi was born.

Kintsugi is the general concept of highlighting or emphasizing imperfections, visualizing mends and seams with gold as additive to an area to celebrate rather than hide the cracks or missing pieces. Rather than disguising the breakage, kintsugi restores the broken item incorporating the damage into the aesthetic of the restored item, making it part of the object’s history. Kintsugi uses lacquer resin mixed with powdered gold, silver, platinum, copper or bronze, resulting into something more beautiful than the original.

As a philosophy, kintsugi can be seen to have similarities to the Japanese philosophy of wabi-sabi, an embracing of the flawed or imperfect. Japanese aesthetics values marks of wear by the use of an object. This can be seen as a rationale for keeping an object around even after it has broken and as a justification of kintsugi itself, highlighting the cracks and repairs as simply an event in the life of an object rather than allowing its service to end at the time of its damage or breakage.

Despite being a highly visual technique, kintsugi draws attention to the life, rather than the look of a pot. Think of it: you imagine, then craft a gorgeous pot, and it leaves your hands and begins a life with other people, in a different place, and is used by a family, perhaps generations of that family, or is gifted to a loved one, taken overseas, or left alone for years in a cupboard before being brought out, dusted off, and adored as a ‘family’ piece, the facts of its history totally forgotten. Then a small child makes a grab for it and it’s a gonner, smashed to pieces on the floor. To throw the pot away is to destroy its unique story. To repair it the kintsugi way is to continue its tale of adventure and triumph.

The best litigators have been broken and put back together again. Repeatedly. About 30 years ago, right out of law school, I went into the public defender's office. As a public defender, I was in court every day. In fact, I was placed in a rural office and did everything from mental health commitments, traffic cases and even homicides. The first case I walked into was co-chairing a homicide. Day in and day out I participated in jury selection, openings and closings, making objections, arguing motions, and developing theories of the case in a way completely different than shown in the books of law school. Clients did not care what my grades were in school. They wanted to know what I was going to do about their case when there was a confession, 3 eyewitnesses (a priest, a minister and a nun) and fingerprints with a videotape. And I got the case in the morning for an afternoon trial.

To be effective in the midst of such chaos requires enormous levels of personal and professional confidence. And don’t confuse confidence with false certainty or hubris. No decision can be certain and no lawyer is always right. But the most effective litigators learn by instinct to translate mountains of structured and unstructured information into clear and decisive action, often in the heat of a trial. You learn to make a decision and move on. Good litigators have made mistakes but put themselves together to triumph. Mistakes are key in the life of a litigator by allowing the mistake to not end our service but enhance it. I learned that making a mistake did not make me a bad lawyer. Failing to admit and learn from a mistake is what would make me a bad lawyer.

After almost 30 years in the public defender office, I left the agency and stepped into a new kind of trial in family law. It was an incredible experience. I learned two important lessons. One which I expressed to the trial judge in chambers about half way through trial was I wondered aloud if the rules of evidence applied during a family law trial. Interestingly, the three very seasoned female family law practitioners spontaneously responded aloud with, "No not really..." while the experienced trial judge put his hands behind his head and responded, "Well yes, they are supposed to apply...." The other lesson I learned is that female family law practitioners are far tougher than their male counterparts hands down.

With that in mind I ask you to imagine a big law firm with a female associate bucking to make partner. She has the best record at generating new business and securing multimillion-dollar contracts for the firm. Yet her nomination is put on hold after she was evaluated by several male partners as being too "macho" and in need of a "charm school." One of told her to "walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled and wear jewelry." Instead of doing that, the female associate quits the firm and filed a lawsuit under Title VII of the Civil Rights Act of 1964, which forbids employment discrimination because of a person's sex. Should she win even if she quit the firm?

In a 6-to-3 ruling the U.S. Supreme Court held that a firm basing its decision in part on unlawful sexual stereotyping is discrimination. Wrote Justice William Brennan in the lead opinion: "An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they don't." Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) The firm must establish that it would have rejected Hopkins' partnership bid based on purely nondiscriminatory factors. "At this point," noted Justice Sandra Day O'Connor, "the employer may be required to convince the fact finder that, despite the smoke, there is no fire." The court's decision to shift the burden to the employer should make it easier for many employees to win Title VII cases, which also bar job discrimination on the basis of race, religion and national origin.

Now let's run that analysis if that associate was male instead of female. And the male was gay. In other words, does sexual discrimination under Title VII of the Civil Rights Act of 1964 include sexual orientation discrimination?Perhaps under a July 2015 federal agency decision entitled Baldwin v. Department of Transportation, Appeal No. 0120133080 (July 15, 2015). In Baldwin, a gay male alleged that his supervisor, who was involved in the selection process for a permanent position, made several negative comments about Complainant’s sexual orientation. For example, Complainant stated that when he mentioned that he and his partner had attended Mardi Gras in New Orleans, the supervisor said, “We don’t need to hear about that gay stuff.” He also alleged that the supervisor told him on a number of occasions that he was “a distraction in the radar room” when his participation in conversations included mention of his male partner. The U.S. Equal Employment Opportunity Commission held that sexual orientation discrimination is, by its very nature, discrimination because of sex.

The Baldwin decision explains that allegations of sexual orientation discrimination necessarily involve sex-based considerations. First, discrimination on the basis of sexual orientation necessarily involves treating an employee differently because of his or her sex. For example, a lesbian employee disciplined for displaying a picture of her female spouse can allege that an employer took a different action against her based on her sex where the employer did not discipline a male employee for displaying a picture of his female spouse. Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that the employer took the employee's sex into account by treating him or her differently for associating with a person of the same sex. Finally, discrimination on the basis of sexual orientation is sex discrimination because it necessarily involves discrimination based on gender stereotypes, including employer beliefs about the person to whom the employee should be attracted.

It is amazing how seeing an old law school professor makes you think of some things. I saw my old Marquette Law School criminal law professor, Professor Hammer, today after being out with another lawyer. Instantly, my mind jumped to a question he asked my criminal law class based on Cardozo's famous question in criminal law, " "Should the criminal go free because the constable has blundered?" People v. Defore, 242 N.Y. 13

Not sure if we as brilliant 1Ls we had an answer that day. Today, however, I realize the answer to this question is not about law enforcement. It is really a question government. Or maybe, more exactly, what role should government play in a supposedly free society. According to James Dorn of the Cato Institute, when Madison was writing the Constitution, he was not "primarily looking for an engine of economic growth; he was seeking an institutional design to limit the powers of government and protect individual rights. People would then be free to pursue their happiness and, in the process, create wealth. ... The legitimate functions of government help define the range of choices open to individuals and, hence, the boundaries between the individual and the state."The boundaries between the individual and the state are defined in the process that is due in criminal law, "that most awesome aspect of government...." Pennekamp v. Florida, 328 U.S. 331, 356 (1946) (Frankfurter, J., concurring). The measure of a civilization is judged by the process it uses to enforce its criminal laws. Coppedge v. United States, 369 U.S. 438, 449 (1962). This measure of due process is in reality "our sense of fair play which dictates" a fair balance in the contest between the state and the individual. Murphy v. Waterfront Comm'n., 378 U.S. 52, 55 (1964). Due process is a constitutional guarantee that the government must respect personal rights which are "fundamental" and "implicit in the concept of ordered liberty." Rochin v. California, 342 U. S. 165, 169 (1952).

In his memorable dissent in Olmstead v. United States, 277 U.S. 438 471 (1928) Justice Brandeis explained that when the government seeks to enforce a law by the commission of criminal acts, there are compelling reasons not to do so. Id at 483-84. Legal remedies would be denied to a prosecuting litigant who "has violated the law in connection with the very transaction as to which he seeks legal redress." Id. at 484. The reasons for this, Justice Brandeis instructed, were "to maintain respect for law[,]... to promote confidence in the administration of justice[,]. . . [and] to preserve the judicial process from contamination," regardless of any wrong committed by the defendant. Id.

For this reason, concluded Justice Brandeis, "[d]ecency, security[,] and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen." Id. at 485. If the rule were otherwise, argued Justice Brandeis, the very existence of government would be "imperilled" by its failure "to observe the law scrupulously." Id. Furthermore, by its example as "the potent, the omnipresent teacher," the government, as lawbreaker, will breed "contempt for law" and invite anarchy. Id. To Justice Brandeis, therefore, any attempt by government to introduce, into "the administration of the criminal law," the doctrine that "the end justifies the means -to declare that the [g]overnment may commit crimes in order to secure the conviction of a private criminal would bring terrible retribution." Against that "pernicious doctrine," he admonished, "[c]ourt[s] should resolutely set [their] face[s]." Id.

Simply put, courts are custodians of liberty that cannot sanction convictions taken by offensive methods or courts will breed contempt of the law. McNabb v. United States, 318 U.S. 332, 343-47 (1943).